Can you claim Negligent Infliction of Emotional Distress (NIED) even if you’re not physically at the scene of Incident? Downey v. City of Riverside   

By Eric Ganci

If you were “present” at an Incident caused to a direct Plaintiff, and suffer emotional distress but are not the direct Plaintiff, can you make a claim against the Defendant who caused the Incident against the direct Plaintiff?  Let me give an example: if you are walking with someone in a crosswalk across the street, and a Driver crashes into the person you are walking with, can you make a claim for having suffered emotional injuries from seeing that crash?  The answer per the law is usually “it depends.” And that is the answer here, along with insight from this April 2023 Court of Appeal decision Downey v. City of Riverside, which is cited as 2023 WL 3087500 as of May 2, 2023.  To start, the California Civil Jury Instruction is CACI 1621, which can be given to the Jurors like this:  Plaintiff claims that she suffered serious emotional distress as a result of perceiving [an injury to/or the death of] Plaintiff [by another NAME…the Direct Plaintiff]. To establish this claim, the Witnessing Plaintiff must prove all of the following: 

1. That [name of defendant] negligently caused [injury to/the death of] [the Direct Plaintiff];
2. That when the Incident that caused [injury to/the death of] [the Direct Plaintiff] occurred, [the Witnessing Plaintiff] was present at the scene;
3. That [the Witnessing Plaintiff] was then aware that the [Incident] was causing [injury to/the death of] [the Direct Plaintiff];
4. That [the Witnessing Plaintiff] suffered serious emotional distress; and
5. That [defendant]’s conduct was a substantial factor in causing [the Witnessing Plaintiff’s] serious emotional distress.

Case law has further interpreted this law to require the Witnessing Plaintiff “is closely related to the injury victim….” 

Now, fast-forward to this Downey v. City of Riverside case.  

What happens in this case?  

Witnessing Plaintiff is on the phone with Direct Plaintiff. Witnessing Plaintiff is the mother of the Direct Plaintiff.  

One Defendant is the City of Riverside, which Plaintiffs allege maintained its vegetation and trees in an unsafe way, which created an unsafe obstruction of view for drivers…and then which caused a driver to crash into the Direct Plaintiff.  

During this crash, Witness Plaintiff was not physically present at the scene, but rather on the phone with the Direct Plaintiff.  

The direct language from the case is “[s]he alleged that because she was on the phone with Vance and heard the sounds of the crash and its aftermath, she was ‘present, or virtually present’ at the scene when the collision happened and had ‘contemporaneous, sensory awareness of the connection between the injury-causing traffic collision and the grievous injury suffered by [Vance] as a result …, thereby causing … Downey … serious emotional injuries and damages ….’” 

With this, here’s one legal question: if you are only on the phone and not physically at the scene of the Incident, can you claim you were “present at the scene”, as CACI 1621 requires?  

The answer is no, you need not be physically present.  

Downey here cites to an older, classic case Thing v. La Chusa, a 1989 decision cited as 48 Cal.3d 644.  

The Court here cites: “To be sure, Thing’s requirement that the plaintiff be contemporaneously aware of the injury-producing event has not been interpreted as requiring visual perception of an impact on the victim. A plaintiff may recover based on an event perceived by other senses, so long as the event is contemporaneously understood as causing injury to a close relative.”  

So we have an answer to that issue.  

But there’s another issue within Downey:  

Can Witnessing Plaintiff here claim she was “present” at the scene? Yes. However, there was issue to the allegation against the City of the element whether the Witnessing Plaintiff was then aware that the Incident was causing injury to the Direct Plaintiff.  

Was Witnessing Plaintiff aware the crash happened? Sure. But was Witnessing Plaintiff aware either the City or the Driver’s alleged negligence caused the Incident? That’s the part the Court takes issue with here.  

The Court says “someone who hears an accident but does not then know it is causing injury to a relative does not have a viable claim for [negligent infliction of emotional distress], even if the missing knowledge is acquired moments later.” 

The Court decides based on how Plaintiff filed this complaint “there are no allegations showing at the time of the accident, Downey was “then aware’ that City’s or Sevacherian’s [the Defendant Driver] acts or omissions with respect to the traffic markings at the intersection or landscaping of surrounding property caused the accident or injured Vance. Even if the claimed dangerous conditions were visible and obvious, Downey’s complaint establishes she was not physically present at the scene to observe them.” 

Ultimately the Court here finds Witnessing Plaintiff’s complaint deficient but allows her to amend the complaint and see if Witnessing Plaintiff can cure these deficiencies.  

The Court’s direct language is the Witnessing Plaintiff “must allege facts showing she had ‘contemporaneous sensory awareness of the causal connection between the [defendant’s] negligent conduct and the resulting injury.’ The complaint as presently styled does not contain such facts and thus it does not state a negligent infliction of emotional distress cause of action.”  

Witnessing Plaintiff argued “she can allege additional facts establishing that she had familiarity with, and knowledge and awareness of, the intersection and the dangerous conditions created by City and Sevacherian [the Defendant Driver].” So the Court allows Witnessing Plaintiff to amend her complaint.